ЗА ДИАЛОГА МЕЖДУ НОРМАТИВНИТЕ СИСТЕМИ В РИМСКОТО ПРАВОРАЗДАВАНЕ: НЯКОИ РАЗМИСЛИ ОТНОСНО CAUTIO DAMNI INFECTI
ABOUT DIALOGUE BETWEEN NORMATIVE SYSTEMS IN ROMAN JURISDICTION: SOME CONSIDERATIONS ON THE CAUTIO DAMNI INFECTI

Summary/Abstract: With regard to the functioning of European civil justice, the principle of proportionality is established, inspired by the requisites of appropriateness, necessity and adequacy. In this principle lies the foundation of the balance between the protection of individual interests in the judicial process and the protection of the efficiency of the judicial system. The origins of the aforementioned principle are found in some classical Roman law institutes, among which the caution damni infecti stands out. The discipline in classical law is examined in relation to the other types of reparation concerning the feared damage. In the light of the existing relations between ius civile and ius honorarium, the problems related to the unavailability of consent and the dynamic "order / sanction", on which the means of protection are centered, are addressed: through it the law of the praetor fully fulfils its function, auxiliary to the ius civile but - at the same time – is able to guarantee itself an autonomous existence on the basis of a different technical legitimation. The caution damni infecti highlights, in conclusion, a modality of a relationship between normative systems aimed at forging equitable and functional instruments, in respect of the most ancient civilized substratum.

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